Centre for Environmental Rights – Advancing Environmental Rights in South Africa

Two weeks ago, the Constitutional Court refused to hear an appeal by Barberton Mines against a judgment of the Supreme Court of Appeal. The Supreme Court of Appeal (SCA) had previously overturned the High Court’s decision to grant an interdict to allow Barberton Mines access to the Barberton Nature Reserve in Mpumalanga to prospect. The Constitutional Court refused to hear the appeal because it was of the opinion that Barberton Mines’ appeal had no merit.

The SCA’s judgment has implications for the future interpretation of the National Environmental Management: Protected Areas Act, 2003 (NEMPAA) in general, and specifically, the interpretation of section 12 of NEMPAA, in terms of which protected areas proclaimed or declared before the commencement of NEMPAA are deemed to be “protected areas” as defined in NEMPAA.

Case summary

Barberton Mines (Pty) Ltd applied, in terms of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA), to the Department of Mineral Resources (DMR) for a protecting right in respect of land that falls within the Barberton Nature Reserve. The DMR turned down Barberton Mines’ application on the basis that it, in terms of section 48 of the MPRDA read with section 48(1)(a) of NEMPAA, it may not grant a prospecting right in respect of land falling within a nature reserve.

Section 48(1) of the MPRDA, in relevant part, provides as follows (our underlining):

Subject to section 48 of the National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003), and subsection (2), no reconnaissance permission, prospecting right, mining right may be granted or mining permit be issued in respect of—

• land comprising a residential area;
• any public road, railway or cemetery;
• any land being used for public or government purposes or reserved in terms of any other law; or
• areas identified by the Minister by notice in the Gazette in terms of section 49.

Section 48(1) of NEMPAA, in relevant part, provides as follows:

Despite other legislation, no person may conduct commercial prospecting, mining, exploration, production or related activities –

• in a special nature reserve, national park or nature reserve;

Barberton Mines submitted an internal appeal to the Director-General of the DMR (DG) against the DMR’s decision, arguing that the Barberton Nature Reserve is not a “nature reserve” as understood in NEMPAA and that the DMR’s decision must therefore be overturned. Its argument centred on the interpretation of section 12 of NEMPAA, which provides as follows:

A protected area which immediately before this section took effect was reserved or protected in terms of provincial legislation for any purpose for which an area could in terms of this Act be declared as a nature reserve or protected environment, must be regarded to be a nature reserve or protected environment for the purpose of this Act.

Barberton Mines argued that the Barberton Nature Reserve, which was established before NEMPAA took effect, is not deemed to be a “nature reserve” in terms of section 12 of NEMPAA because it was never “reserved or protected in terms of provincial legislation”. It contended that the administrative acts which purported to establish the Barberton Nature reserve were not valid as they were not taken in the manner prescribed in the provincial legislation that existed at the time.

The administrative acts in question were the following:

1. In 1985, the then Transvaal Administration resolved to reserve “approximately 20 000ha” of the land now constituting the Barberton Nature reserve for the purposes of nature conservation and outdoor recreation. Although the resolution does not explicitly say so, the resolution was made in terms of the Transvaal Nature Conservation Ordinance, 1983 (1985 Resolution). The Resolution was not published in a Gazette.
2. In 1996, the Mpumalanga MEC for Environmental Affairs published a proclamation proclaiming “conservation areas” in Mpumalanga, including the Barberton Nature Reserve (1996 Proclamation). The proclamation did not give a geographic descriptions of the areas comprising the listed conservation areas. The proclamation was made in terms of the Eastern Transvaal Parks Board Act, 1995, in which “conservation area” is defined to mean “an area designated by the responsible Member in the Provincial Gazette to be a conservation area.”

Barberton Mines’ argument was that the 1985 resolution did not comply with the Transvaal Nature Conservation Ordinance, 1983 as it was not published in a gazette and that the 1996 Proclamation did not comply with the Eastern Transvaal Parks Board Act, 1995 because it did not include a description of the affected properties. The argument was therefore that the Barberton Nature Reserve was never “reserved or protected” as contemplated in section 12, that it is therefore not a “nature reserve” as contemplated in NEMPAA and that commercial prospecting is consequently not prohibited on the land forming part of the Barberton Nature Reserve.

The DG accepted Barberton Mines’ argument and consequently upheld its appeal and overturned the DMR’s decision to refuse to Barberton Mines’ prospecting right application. A prospecting right was therefore issued to Barberton Mines to conduct commercial prospecting in the Barberton Nature Reserve.

The Mpumalanga Tourism and Parks Agency (MTPA) and some landowners, however, refused Barberton Mines access to the Barberton Nature Reserve. Barberton Mines therefore approached the High Court with an application for an interdict prohibiting the MTPA and landowners from denying them access to the reserve. The application was opposed by the MTPA and the landowners (respondents). The respondents also brought a counter–application in which they sought an order reviewing and setting aside the decision of the DG to uphold Barberton Mines’ appeal.

The High Court granted the interdict sought by the Barberton Mines and dismissed the respondents’ counter-application. The High Court held that not only did the administrative acts not comply with applicable legislation, they were also too vague. It also found that there was an unreasonable delay by the respondents in bringing the counter-application.

The respondents therefore appealed against the High Court’s judgment to the SCA. The appeal was successful and the High Court’s judgment was therefore overturned.

Supreme Court of Appeal judgment

The SCA criticised the High Court for taking too narrow an approach to answering the question of whether or not the 1985 Resolution and the 1996 Proclamation legally established the Barberton Nature Reserve. According to the SCA, the starting point for reading the 1996 Proclamation should have been section 24 of the Constitution of the Republic of South Africa, 1996 (Constitution) and the objective that section 12 of NEMPAA seeks to achieve. Section 24 of the Constitution, in relevant part, provides that the State must take legislative and reasonable measures to promote conservation. According to the Court, the sole objective of section 12 of NEMPAA is broadening the scope of NEMPAA “… to include within its reach protected areas reserved or protected by provincial legislation”. The SCA therefore found that the 1996 Proclamation, read with the 1985 Resolution and in the light of section 24 of the Constitution and the objective of section 12 of  NEMPAA is sufficiently clear for the public to ascertain the area covered by the Barberton Nature Reserve. It therefore disagreed with the High Court that the two administrative acts were too vague.

The SCA explained that the law requires reasonable, not perfect, lucidity and that it is the duty of the Court to avoid, if possible, the conclusion that a declaration or proclamation of a protected area or conservation area is too vague to be effective. It is the government’s duty to further legitimate social and economic objectives and the doctrine of vagueness should not be used unduly to impede or prevent the furtherance of such objectives.

In the SCA’s opinion, in the end, common sense must prevail.

Implications of the judgment

As the judgment has been delivered by the SCA, it has set a legal precedent that must be followed by High Courts and the SCA in relevant future cases. It will also have persuasive value in relevant future litigation in the Constitutional Court must must also guide future relevant decision-making by relevant organs of state, such as the DMR, the Department of Environmental Affairs, conservation agencies and provincial environmental authorities.

The judgment reaffirms the notion that the starting point for interpreting any environmental legislation and acts in terms of environmental legislation must always be section 24 of the Constitution. Section 12 of NEMPAA, and the effect of section 12 of NEMPAA, must be interpreted in the light of section 24, and therefore as a “legislative measure” that promotes conservation. Doctrines such as the “doctrine of vagueness” may not be used to frustrate the role of legislative measures that promote conservation. As a result, the conclusion that the declaration or proclamation of a conservation area or protected area is invalid for being too vague cannot easily be reached.

The SCA has effectively closed the floodgate of applications for commercial prospecting, mining, exploration or production rights in terms of the MPRDA in relation to conservation areas or protected areas declared in terms of provincial legislation (or ordinances) before the commencement of NEMPAA, on 1 November 2004. Technical errors made in declaring or proclaiming such areas will now rarely result in a court finding that such a conservation area or protected area is not a “protected area” as contemplated in NEMPAA.

However, conservation agencies must not rest on the MTPA’s laurels. There may well be circumstances when the doctrine of vagueness will override section 24 of the Constitution. One of the pillars of the Constitution is the rule of law, and one of the essential elements of the rule of law is certainty. If a declaration or proclamation is unreasonably vague, it may well be set  aside by a court. It is therefore very strongly recommended that conservation agencies conduct proper audits of the declaration or proclamation of all protected areas within their respective geographic jurisdictions and critically assess the lucidity of those declarations. If a declaration or proclamation is unclear, it is recommended that it is supplemented by a notice in the Government Gazette in terms of NEMPAA to clarify, especially, the geographical area covered by the relevant protected area. If a declaration or proclamation is seriously defective, it is recommended that it is re-declared in terms of NEMPAA.